* Pursuant to Local Rule 47.5, the court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in Local Rule 47.5.4.

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 96-30516

Summary Calendar

EARL B. STERLING,

Plaintiff-Appellant,

VERSUS

NEW ORLEANS CITY PARK

Defendant

LOUISIANA STATE, through the

NEW ORLEANS CITY PARK IMPROVEMENT ASSOCIATION 

erroneously sued as New Orleans City Park,

Defendant-Appellee.

Appeal from the United States District Court

For the Eastern District of Louisiana

(95-CV-1862)

December 10, 1996

Before JONES, DeMOSS, and PARKER, Circuit Judges.

PER CURIAM:*

The Appellant, Earl B. Sterling ("Sterling"), applied for the

position of golf ranger/laborer with the New Orleans City Park, an

unskilled noncompetitive position for which applicants are not
2

required to take a civil service examination. Sterling was

afforded a pre-screen interview during which his responses to

eighteen (18) Interview Questions were ranked from one (lowest) to

five (highest) by the Park's interviewers. Sterling's composite

score was a sixty-nine and he was not afforded a second interview.

Those who were afforded a second interview had a composite score of

at least seventy or greater. Later, Sterling commenced this action

contending that because he is disabled and was not awarded the

appropriate amount of veteran preference points allowed under the

Louisiana Constitution, he was discriminated against because of his

disability in violation of the Americans with Disabilities Act (42

U.S.C. § 12102 et. seq.)("ADA").

The State of Louisiana through the New Orleans City Park

Improvement Association's ("Park") moved for summary judgment

contending that Sterling failed to state a violation under the ADA

and that Sterling was not entitled to the veteran preference points

for a noncompetitive position. Sterling argued in his opposition

to summary judgment that under the Louisiana Constitution, Article

10, Section 10, his score on the Interview Questions was entitled

to five preference points for his veteran status and an additional

five points for being a disabled veteran. Because he was not

afforded his full veteran points, Sterling believed that he was

discriminated against because he did not receive a qualifying score

for the position for which he applied.

The district court concluded, without determining whether
3

Sterling was entitled to the ten-point preference under the

Louisiana Constitution, that the Park's rating of Sterling during

the interview process was not discriminatory on the basis that

Sterling failed to produce any evidence that he was entitled to the

preference and failed to adduce any evidence that the Park's

failure to grant Sterling a ten-point preference was

discriminatory, i.e., that the Park refused to grant him the

preference points because of his disability, in violation of the

ADA.

We review the district court's grant of summary judgment de

novo. Dollis v. Rubin, 77 F.3d 777, 781 (5th Cir. 1995). Summary

judgment is appropriate when the summary judgment record

demonstrates that there is no genuine issue as to any material fact

and that the moving party is entitled to judgment as a matter of

law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-49, 106 S.

Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986); FED. R. CIV. P. 56(c).

In reviewing the record, although we may conclude that the

reasons given by the lower court do not support summary judgment,

this court is not bound by those grounds articulated and we may

affirm the judgment on any other grounds supported by the record.

See Forsyth v. Barr, 19 F.3d 1527, 1534 n.12 (5th Cir.), cert.

denied, U.S. , 115 S. Ct. 195, 130 L. Ed. 2d. 127 (1994).

Pursuant to Article 10, Section 10 of the Louisiana

Constitution, the Civil Service Commission is vested with the

authority to promulgate the civil service rules ("Rules"), and the
4

Rules of the Commission have the force and effect of law. Parker

& Assoc., Inc. v. State of Louisiana, 454 So.2d 162, 165 (La. App.

1st Cir. 1984), writ denied, 459 So.2d 538 (La. 1984). As long as

the "Commission's rules are reasonable and not violative of basic

constitutional rights, they must be recognized and given effect by

the courts." Id. (citation omitted). Chapter 7, Rule 7.11 governs

the granting of "preferential eligibility credits" to persons

honorably discharged from the Armed Forces and the amount of

credits to be awarded. The state and city civil service

departments must accord a ten-point preference in original

appointment to each honorably discharged veteran who is disabled.

La. Const. 1974, Article 10, Section 10(A)(2); Rule 7.11(c).

However, "such preference may be given only to a person who has

attained at least the minimum score required on each test ...."

Louisiana Constitution, Article 10, Section 10(A)(2); Rule 7.11(e).

(emphasis added). Further, Rule 7.20(a) provides that certain

classes of unskilled labor, custodial workers, attendants, and

similar classes may be designated as "noncompetitive classes" and

the open competitive examinations are dispensed with for those

classes. Accordingly, we must read these Rules in tandem to

ascertain whether Sterling is eligible for the preference points.

When reading these Rules together, the result we must conclude

is that Sterling is not entitled to the additional preference

points. The position for which Sterling applied was that of golf

ranger/laborer, a noncompetitive position, which does not require
5

the applicant to take the civil service examination. On the other

hand, persons seeking to apply for "competitive" civil service

positions must take an examination and are afforded the veteran

preference points only if they meet the minimum requirements. In

this case, Sterling was not required to take a civil service test

despite his meritless argument that the Interview Questions

constitute such a test. Because Sterling's position was a

noncompetitive position and thus he was not required to take an

examination, there is no "minimum requirement" to compare his

interview rating to and, therefore, no requirement to award the

preference points. We note that Sterling has failed to point out

under the Rules the basis on which he is entitled to the preference

points. Finally, Rule 7.12 requires proof of eligibility for

military preferences be furnished to the Director of Civil Service

by the applicant claiming the preference. Assuming arguendo that

Sterling was entitled to the preference points under the civil

service rules, our review of the record discloses that Sterling

provided no such proof, except for his lone response to Interview

Question number 18 in which he stated that he was disabled but

provided no further proof regarding his disability. Therefore,

based on the foregoing discussion and after reviewing the record

and the applicable law, we conclude that the district court's

granting of summary judgment should be AFFIRMED.

AFFIRMED.